WARNING: Aboriginal and Torres Strait Islander readers are warned that the following post contains names and images of deceased persons.
There are three indigenous deaths that were mentioned in the news this week, each demonstrating a different aspect of frontier clashes between indigenous Australians and settlers.
DEATH OF ‘JACK’
Well, I think that we all knew that this wasn’t going to end well. In the last posting of This Week in Port Phillip 1841 dated May 8-15, we read the report of the surgical amputation of the leg of ‘Jack’, an indigenous prisoner brought down to Melbourne to face murder charges over the death of a convict overseer. Such drastic surgery, and not unexpectedly….
On Sunday at about noon, the Aborigine named “Jack” upon whom amputation was performed a few days since, died in the Hospital. Ever since the operation was performed “Jack” has exhibited considerable symptoms of restlessness, tearing off the bandage, and continually getting out of bed, thereby injuring the stump and causing inflammation, which terminated in death. (PPH 18/5/41)
AN ATTACK UNPUNISHED
An extraordinary edition of the Port Phillip Herald on 19 May reported the Supreme Case of R v Jenkins and ors. In this case William Jenkins, William Martin, John Pennington, Edward Collins and Robert Morrison were jointly indicted for shooting at an aborigine, with intent to maim, disfigure and disable him, at Cumberland Creek. They were also charged with a second count of intent to do grievous bodily harm.
In a detailed breakdown of the case, Paul Mullaly explains that the ‘disturbance’ took place in early February 1841 on the Boral Creek outstation of the Lodden River station owned by Messrs Dutton, Darlot and Simson. There had been rumours from the local aborigines that the ‘Goulburn blacks’ were coming to kill shepherds and steal sheep, and so the accused men, all assigned servants (i.e. convicts) went to the outstation one evening, followed by Henry Darlot the next morning. The next afternoon, there was a confrontation between the assigned servants, some of whom were armed, and two Aborigines known as Tommy (otherwise Goudu-urmin) and Abraham (or Jemmy- named in the PPH article as Manharger-bun). Morrison was grabbed around the neck by Abraham, who tried to take his pistol, while other aborigines were nearby, stealing items from around the outstation. The white men claimed that spears were thrown at them and that they fired in response. Abraham and Tommy were wounded and Morrison was released without injury. It is likely that Tommy died (although there is no mention of a body) but Abraham did survive.
The matter came to the attention of Assistant Aboriginal Protector Edward Stone Parker who was responsible for the Loddon District. He instituted an enquiry, and took depositions from the men involved. And that was the problem. According to the practice at the time, the accused could not give evidence on oath, only a statement about the evidence already collected. The common law maxim “no one is bound to accuse himself” (or nemo tenebatur prodere sipsum for the Latin-readers amongst us) applied, and in Blackstone’s words the fault of the accused was ‘not to be wrung out of himself, but rather to be discovered by other means, and other men’. But what if the only people present were all accused, with the only other witnesses excluded from giving evidence because they were Aboriginal?
Parker submitted the case to the Crown Prosecutor, James Croke, who chided Parker for taking depositions from men who were alleged to have committed the offences. Parker replied that there was another witness, Joseph Maddox, who rode up after the shots had been fired. During the case, which Judge Willis recorded in his casebook, Joseph Maddox was the only witness. At this point the Crown Prosecutor ‘relinquished the proceedings’ and Willis directed the jury that the “prisoners were perfectly justified in shooting in self defence”. The prisoners were acquitted. Willis upbraided Parker for taking improper depositions- a theme which the Port Phillip Herald took up with glee in an editorial on 21 May headed “THE BLACK PROTECTORS
If anything be calculated to arouse the indignation of a free, and besides, a British people, to a sense of the wrongs they have suffered, and the awful dangers to which they are exposed by the tyranny of the Protectorate, and the attempted subversion of the principles of the British constitution by its ignorant officials; and if there be any thing that will come home to the feelings or address the reason of a should-be protecting Government, it is the case to which we have now adverted. The whole system of the Protectorate is rotten at the core; reform cannot be introduced; its constituent elements are subversive of every principle of equity, or justice, and being thus radically bad, must be wholly extirpated from the province. The Protectors as a body, instead of a blessing, have proved a curse to the community at large, and as such we will not lose sight of them until they are removed from place and power. (PPH 21/5/41 p.2)
A DEATH IN CUSTODY
Along St Georges Road in Northcote, in front of the oval that abuts the Aboriginal Advancement League, there is a large mural. It was originally erected in a temporary car-park on Ruckers Hill in 1983, but was shifted to its current location in 1988. It became increasingly dilapidated and in 2013 it was dismantled, digitally photographed, updated and re-erected and stands proud and confronting again.
Probably the most disturbing section of all shows two indigenous men chained together around the neck. The image came from Western Australia in the early twentieth century, but in May 1841 a similar case came before the Supreme Court in Port Phillip.
On December 6 1840 mounted constables Michael Goodwin and Thomas Connock arrived in Melbourne with an indigenous prisoner, Jag.ger.rog.rer, known as ‘Harlequin’. He was about 19 years of age, and had been arrested on warrant near Yackandandah and brought to Melbourne for trial. He was delivered at the watchhouse in poor health, with a chain around his neck and died on 8 December. It had been a eight day journey of 153 miles, with Jag.ger.rog.rer chained and on foot for all but 14 miles.
The Aboriginal Protector, George Augustus Robinson wrote a long report on ‘Harlequin’s’ death in his journal on 10 December 1840. There was quite a bit of official discomfort about this death in custody. James Croke wrote to La Trobe that
I must candidly confess that the disease of which Harlequin died was superinduced by the manner in which he was made to travel (and that there is evidence of that fact I am quite satisfied) the escort are as guilty of his death as if they had shot him without justifiable cause. (Croke to La Trobe 12 Feb 1841 VPRS 19 41/232)
In a later letter Croke said that he thought that not just the final two escorts, but all constables responsible for Harlequin’s custody should be examined. This was carried out, after some skirmishing between Police Magistrate Simpson and Protector Robinson over responsibilities for conducting inquests and taking depositions. The case came before Willis in the Supreme Court on 17 May 1841 when Goodwin and Connock were charged with manslaughter. A report of the case from the Port Phillip Gazette can be found here and Willis’ notes from his Case Books with a commentary from His Honor Paul Mullaly can be found here.
The journey that ended so tragically for Jag.ger.rog.rer went like this:
On 29th November 1840 Sergeant Rose of the Mounted Police took Jag.ger.rog.rer into custody from Ewing’s station. At this time he reported him to be in good health and able to work well. He was marched 14 miles to the barracks on the Hume, a seven-hour journey. On arrival, the handcuffs were removed and replaced with a small horse chain, weighing from half a pound to a pound, and a padlock weighing a quarter of a pound. This was done, the court heard, because the chain “was considered the easiest way of securing the black, so that he could travel without pain”. Sergeant Rose then handed him over to the charge of Troopers Byers and Rowley who took him the ten miles to Barber’s station, at the rate of about three miles and a half per hour. They slept the night there, with the prisoner secured by handcuffs on his wrist, a pair on his legs and a chain passed through and secured on the outside.
The next day they set off at 7o’clock, with Jag.ger.rog.rer reported to be in good health, eating his bread, meat and tea well. It took all day to reach Mr Reed’s on the Ovens River, a distance of 35 miles. He was handcuffed the whole way, with the chain held by one of the troopers. “Harlequin spoke so much English as to make himself understood, but made no complaint of being tired, or that he wished to stop.”
On 1 December they departed Reed’s station at 7.30 and arrived at Broken River, 30 miles distant, at sundown where he was given into the custody of Corporal Kershaw. The corporal started off the following morning with Jag.ger.rog.rer secured by a collar chain, the leather around his neck and the strap through a link of the chain, with a padlock. They travelled 28 miles along a bushy road that was not easily travelled. Harlequin rode two miles, and they stopped at one of the Seven Creeks.
On 2nd December they proceeded to the Goulburn, about 29 miles. About twelve miles before arriving, Jag.ger.rog.rer complained of a pain in his side after eating heartily. He was permitted to rest for two hours and travelled the rest of the journey on horseback. He was handed over to Sergeant Keely who was told that the prisoner had complained of a pain in his side. They stopped here for a couple of days
On 4th December it was reported that Jag.ger.rog.rer (Harlequin) was sick, that he coughed and appeared very ill. On 5th December he was given into the charge of Goodwin and Connock to take him to Melbourne as quickly as they could. A chain, four feet in length, weighing about two pounds and covered with cloth was placed around his neck. It was reported that the chain was not a noose, and could not tighten around the neck. The prisoners, who were not ordered to stop at any particular place, travelled about 35 miles that day, stopping at Mr Green’s station.
They arrived in Melbourne at about 4.00 o’clock on the 6th December and he was taken to the Watch-house. By this time he had a ‘dog chain’ around his neck and the chain was so tight that it was not possible to pass a ringer between the chain and Jag.ger.rog.rer’s neck. His face was swollen, he had difficulty breathing and when the chain was removed, he threw himself down on his back. Dr Cussen was called and when he attended he found Jagger-Rogger sitting on the floor of his cell, rather hot and feverish, but Cussen conclused that “he had all the symptoms of a man who was excessively fatigued”. However, the next morning, the fever was worse and he was removed to the hospital where he was administered a mild purgative. On the 8th he was given more active medicine but died either that night or early the next morning.
The doctor considered
the fever to have been caused in this case both from fatigue and mental depression. …[He] did not think that travelling 75 miles in two days in the month of December in Australia Felix, with chains on the hands and neck would be sufficient to cause death, providing there was no undue pressure on the neck. The pain in Harlequin’s side must have been spasmodic or muscular; if it had been inflammatory, it would have gone on so rapidly as to have impeded the journey in a very short time. Never saw a case where mental anxiety caused a fever so rapid in its effects as to cut off life in two or three days. (PPH 18/5/41 p.3)
This was the end of the Crown case. At this point, Willis told the jury that, on hearing the evidence, he was duty-bound to instruct that there was no culpable excesses by the prisoners; that Dr Cussen’s evidence showed that the pain in the side was not caused by the manacles, and that he had been treated kindly and given provision whenever he had stopped. The jury immediately returned a verdict of not guilty “deeply regretting the loss of life occasioned by the neglect of some parties”.
[I haven’t been able to find any information about the distance usually travelled when escorting prisoners. The speed of 3 miles per hour seems to be a generally acceptable walking pace today, but I cannot imagine that this speed could be sustained over rough country. The only image that I have been able to find of a prisoner escort dates from 1855 where S.T. Gill sketches five prisoners being transported in a cart. It is not clear whether they are chained by the neck or not]
Paul Mullaly Crime in the Port Phillip District 1835-51 (Hybrid, Melbourne, 2008) pp. 61-62; 353-357; 365-369
Judge Willis Casebooks http://www.historyvictoria.org.au/willis/index.html